THE GUJARAT MARITIME BOARDversusG.C. PANDYA

                        [2015] 4 S.C.R. 326


A               THE GUJARAT MARITIME BOARD

                                 v.
                         G.C. PANDYA

                  (Civil Appeal No. 3563 of 2015)
8
                          APRIL 13, 2015

         [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

          Service law: Disciplinary proceedings - Punishment
C    of censure on 26. 6. 2002 - After superannuation on
     30.6.2002, respondent filed suit for declaration that the
     disciplinary enquiry held against him and the punishment
     awarded were illegal - Respondent also sought promotion
     w. e.f. 1. 1. 2002 - Appellant-board did not file written
D    statement - Trial court decreed the suit - Appellate courts
     upheld the same - Held: Plea of appellant-employer that
     respondent had not completed 3 years of service as
     Superintending Engineer and as such he was not entitled
E    to be promoted as Chief Engineer was not raised before
     the trial court and, therefore, concurrent findings of fact
     cannot be set aside - Further, it is the duty of the High
     Court to formulate substantial questions of law as required
     uls. 100 of C. PC. - But, in the instant case, from the
F    impugned order it nowhere reflected that the second
     appeal was admitted, rather it showed that after hearing
     the parties, High Court held that there was no substantial
     question of law involved in the appeal - High Court
     rightly took note of the fact that the appellant-board
G    neither chose to file written statement nor led any
     evidence before the trial court - No doubt, the question of
    jurisdiction can be raised at any stage, but there was no
     other forum for the respondent where he could have

H                               326
   THE GUJARAT MARITIME BOARD v. G.C. PANDYA              327


sought his remedy - As such, there was no error in the A
impugned order - The only error committed by trial court
was that instead of directing appellant-board to consider
promotion of respondent w.e.f. 1.1.2002, it declared
promotion of the respondent w.e.f. said date without
considering his service record - Ordered accordingly - B
Code of Civil Procedure, 1908 - s. 100.

    Partly allowing the appeal, the Court

    HELD: 1. As far as actual period served as c
Superintending Engineer by the plaintiff was
concerned, said fact should have been pleaded
specifically by the defendant/appellant, but it did not
even care to file the written statement before the trial
court. When there was no such plea before the trial D
court, the concurrent findings of fact of the courts
below cannot be set aside. [Para 10] [331-C-D]

    Ba/raj Taneja and another v. Sunil Madan and
another 1999 (2) Suppl. SCR 258: (1999) 8 SCC 396 - E
referred to.

     2. In a case where the written statement is not
filed, the civil court has the jurisdiction to proceed
under Order VIII Rule 10 of C.P.C. However, the F
orders are not required to be passed in mechanical
manner in exercise of the powers contained in the
above mentioned provision of law. In the present case
the trial court did not act mechanically. Rather it
discussed the pleadings and the evidence led by the G
plaintiff, and considered rival submissions. The only
error committed by the trial court was that it declared
the plaintiff to have been promoted w.e.f 1.1.2002
without considering service record of the Officer
(plaintiff). Thus, instead of treating the plaintiff to have H
328        SUPREME COURT REPORTS               [2015] 4 S.C.R.


A     been promoted w.e.f. 1.. 2002 as Chief Engineer, his
      case shall be considered by defendant for promotion
      to the post of Chief Engineer w.e.f. 1.1.2002. [Paras
      13, 14] [332-B-C; 333-D-F; 334-A-B]

 B                    Case Law Reference

        1999 (2) Suppl. SCR 258        referred to.   Para 13

          CIVIL APPELLATE JURISDICTION: Civil Appeal No.
      3563 of 2015.
c
          From the Judgment and Order dated 18.12.2013 of the
      High Court of Gujarat at Ahmedabad in Second Appeal No.
      172 of 2013.

D         Hemantika Wahi, Jesal Wahi, Giss Antony for the
      Appellant.

         Alok Bhachawat, Manoj Joshi, K. V. Bharathi
      Upadhyaya for the Respondent.
E        The Judgment of the Court was delivered by

        PRAFULLA C. PANT, J. 1. This appeal is directed
   against order dated 18.12.2013, passed by the High Court
   of Gujarat in Second Appeal No. 172 of 2013 whereby
 F said Court has dismissed the appeal upholding the
   judgment and decree passed by the first appellate court
   and the trial court.

      2. We have heard learned counsel for the parties and
G perused the papers on record.

      3. Brief facts giving rise to this appeal are that
  respondent G.C. Pandya was Deputy Engineer (civil) with
  the appellant Gujarat Maritime Board. He was charge-
H sheeted for certain· irregularities allegedly committed by him
   THE GUJARAT MARITIME BOARD v. G.C. PANDYA                     329
             [PRAFULLA C. PANT, J.]

during the period 1982-1984, due to which the appellant A
suffered huge losses. In said enquiry the plaintiff/
respondent G.C. Pandya was held guilty and awarded
punishment of "censure" on 26.6.2002. He was
superannuated on 30.6.2002 from service as
Superintending Engineer. He (respondent) instituted Civil B
Suit No. 569 of 2002 before Civil Judge, Porbandar, for
declaration that the departmental enquiry held against him
and punishment awarded are illegal. The plaintiff further
sought his promotion with effect from 1.1.2002. It is
pleaded in the plaint that the departmental enquiry was C
purposely kept pending with a motive to deny promotion to
the plaintiff. It was alleged by the plaintiff that the
allegations in the charge sheet were false, and the enquiry
was initiated to allow promotion of juniors to the plaintiff.
                                                                  D
    4. Strangely, though the defendant Gujarat Maritime
Board (present appellant) was served and represented
through its counsel, but it did not file any written statement
contradicting the facts alleged in the plaint.
                                                                  E
    5. Since no written statement was filed by the
defendanU appellant, there was no question of framing
issues in the suit, and judgment could have been
pronounced under Order VIII Rule 10 of the Code of Civil
Procedure, 1908 (for short "C.P.C."). However, the trial          F
court formulated the questions to be decided in the suit as
under: -

  "(I) Whether the plaintiff establishes that, the charge
       sheet issued against him and thereafter the order of G
       the departmental inquiry and of the punishment is
       illegal, unconstitutional and required to be rejected?

  (II)   Whether the plaintiff establishes that the act of the
                                                                  H
330       SUPREME COURT REPORTS                    [2015] 4 S.C.R.


A         defendant preventing the plaintiff from promotion on
          the post of Chief Engineer is illegal, unconstitutional
          and requires to be rejected?

      (Ill) Whether the plaintiff establishes that, by treating the
B           promotion with effect from 1/1/2002 the plaintiff is
            entitled and rightful to avail all the rights of the said
            post?

      (IV) Whether the plaintiff is entitled for the prayer sought
c          for?"

       6. The trial court considered the deposition of plaintiff
  G.C. Pandya and the documentary evidence Ex. 14 to Ex.
  25, and answered each question discussing the evidence
D on record. Submissions of the learned counsel for the
  parties were considered and it is only thereafter, the trial
  court (2"d Additional Senior Civil Judge, Porbandar) passed
  the judgment and decree dated 7 .1.2009 in the suit.

      7. Aggrieved by said judgment and decree, the
E defendant (present appellant) filed Regular Civil Appeal No.
  95 of 2009 before the District Judge, Porbandar. After
  hearing the parties, said Regular Civil Appeal was
  dismissed by the Additional District Judge, Porbandar, vide
F judgment and order dated 29.9.2012. The first appellate
  court framed points of determination and thereafter decided
  the appeal concurring with the trial court.

       8. The defendant (present appellant) thereafter,
  challenged judgment and decree passed by first appellate
G court before the High Court, which was registered as
  Second Appeal No. 172 of 2013. The High Court
  dismissed the Second Appeal. Hence, this appeal before
  us through special leave.

H       9. Learned counsel for the appellant argued before us
   THE GUJARAT MARITIME BOARD v. G.C. PANDYA                331
             [PRAFULLA C. PANT, J.]

that no substantial question of law was framed by the High A
Court, as such, the impugned order passed by the High
Court is liable to be set aside. It is further contended that
the plaintiff had not completed three years of service as
Superintending Engineer, as such, he was not entitled to be
promoted as Chief Engineer.                                   B

     10. However, after going through the papers on record
and considering the submissions of the learned counsel for
the parties, we find little force in the above argument. As
far as actual period served as Superintending Engineer by C
the plaintiff is concerned, said fact should have been
pleaded specifically by the defendanUappellant, but it did
not even care to file the written statement before the trial
court. When there was no such plea before the trial court,
we cannot set aside the concu.rrent findings of fact of the D
courts below.

      11. As far as the question of formulation of substantial
questions of law in a second appeal is concerned, we
agree that before admitting a Second Appeal, it is the duty E
of the High Court to formulate substantial questions of law
as required under Section 100 of C.P.C. But, in the
present case, from the impugned order it nowhere reflects
that the second appeal was admitted, rather it shows that
after hearing the parties the High Court came to the F
conclusion that there was no substantial question of law
involved in the appeal. The High Court has rightly taken
note of the fact that the defendant neither chose to file
written statement nor led any evidence before the trial court.
                                                               G
      12. No doubt, the question of jurisdiction can be raised
at any stage, but in the present case, there was no other
forum for the plaintiff where he could have sought his
remedy. The High Court has observed that the relief could
not have been sought by the plaintiff before the Gujarat Civil H
332      SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A Services Tribunal as the defendant was simply a Board and
  not covered within jurisdiction of said Tribunal. It was not
  a matter to be heard by the Central Administrative Tribunal
  either as the plaintiff was not a Central Government
  employee. As such, we do not find any error in the
B impugned order passed by the High Court.

       13. In a case where the written statement is not filed,
  the civil court has the jurisdiction to proceed under Order
  VIII Rule 10 of C.P.C. However, the orders are not required
C to be passed in mechanical manner in exercise of the
  powers contained in the above mentioned provision of law.
  In Ba/raj Taneja and another v. Sunil Madan and
  another', this Court has laid down law in paragraphs 25 to
  27 on this point, as under: -
D
        "25. Thus, in spite of admission of a fact having been
        made by a party to the suit, the court may still require
        the plaintiff to prove the fact which has been admitted
        by the defendant. This is also in consonance with the
E       provisions of Section 58 of the Evidence Act which
        provides as under:

           "58. Facts admitted need not be proved.-No fact
           need be proved in any proceeding which the
 F         parties thereto or their agents agree to admit at the
           hearing, or which, before the hearing, they agree to
           admit by any writing under their hands, or which by
           any rule or pleading in force at the time they are
           deemed to have admitted by their pleadings:
G
           Provided that the court may, in its discretion, require
           the facts admitted to be proved otherwise than by
           such admissions."

H 1 (1999) a sec 396
   THE GUJARAT MARITIME BOARD v. G.C. PANDYA                  333
             [PRAFULLA C. PANT, J.]

      26. The proviso to this· section specifically gives a A
      discretion to the court to require the facts admitted to
      be proved otherwise than by such admission. The
      proviso corresponds to the proviso to Rule 5(1) Order
      8 CPC.
                                                                 B
      7. In view of the above, it is clear that the court, at no
      stage, can act blindly or mechanically. While enabling
      the court to pronounce judgment in a situation where
      no written statement is filed by the defendant, the
      court has also been given the discretion to pass such C
      order as it may think fit as an alternative~ This is also
      the position under Order 8 Rule 10 CPC where the
      court can either pronounce judgment against the
      defendant or pass such order as it may think fit."
                                                                 D
     14. In view of the law laid down by this Court, as
above, we are of the view that in the present case the trial
court has not acted mechanically. Rather it has discussed
the pleadings and the evidence led by the plaintiff, and
considered rival submissions of the parties. The only error E
committed by the trial court is that instead of directing
defendant to consider promotion of plaintiff with effect from
1.1.2002, it has declared the plaintiff to have been
promoted as Chief Engineer with effect from said date
without considering service record of the Officer (plaintiff). F
The first appellate court and the High Court have also
though considered the arguments advanced before them,
but erred in noticing the above error committed by the trial
court. As such, we have no option but to modify the
decree passed by the courts below to the above extent.           G

      15. For the reasons, as discussed above, we are not
inclined to interfere with the impugned judgment and decree
passed by the courts below except to the extent as above.
                                                                H
334         SUPREME COURT REPORTS             [2015] 4 S.C.R.


A Accordingly, the appeal is partly allowed only to the extent,
  that instead of treating the plaintiff to have been promoted
  with effect from 1.1.2002 as Chief Engineer, his case shall
  be considered by the defendant within a period of three
  months from today for promotion to the post of Chief
B Engineer with effect from 1.1.2002, keeping in mind the
  findings recorded in the suit. No order as to costs.

      Devika Gujral                         Appeal partly allowed.